Compromise or Stalemate?

The Editors March 20, 2012 - 4:01pm

In a March 14 statement (“United for Religious Freedom”[1]), the Administrative Committee of the United States Conference of Catholic Bishops strongly reaffirmed its opposition to the contraception mandate in the Affordable Care Act. The committee vowed to press the political, legislative, and legal battle to broaden religious exemptions to the law while also working to repeal the mandate entirely.

On March 16, the Department of Health and Human Services released a tentative proposal[2] [.pdf] elaborating on the “accommodation” announced by President Barack Obama in February. The administration has responded to the objections of religious groups by offering to shift the cost of contraception from religious institutions to insurance companies. Among other details, HHS exempted self-insured student health plans and outlined how other self-insured institutions might comply with the law. It appears that the insurance administrators used by those institutions—or other “independent entities,” possibly including the government—will be asked to pay for and manage contraception coverage for employees of such organizations. The proposed regulations are dauntingly complex, and there will now be a ninety-day period in which HHS solicits comments on how to improve the plan.

One worry shared by many religious groups is that the administration’s narrow definition of “religious employer” opens the door to greater impingements on religious freedom in the future. In its new document, HHS states that the definition “is intended solely for purposes of the contraceptive coverage requirement,” and is not “intended to set a precedent for any other purpose.” What legal weight that declaration carries is unclear. But whatever the shortcomings of the administration’s position (see “An Illiberal Mandate,”[3] January 13), it appears that the religious-liberty concerns of the bishops and others are being taken seriously.

Since the USCCB has rejected the idea of having insurance providers pay for the contraception coverage of those who work for Catholic institutions, it seems unlikely that the bishops will be satisfied with HHS’s latest initiative. Other Catholic institutions will evaluate the moral hazard involved differently. Whether this will lead to further division within the Catholic community depends on all parties eschewing loose talk of a “war on religion” or a “war on women.” There are legitimate values at stake on both sides of this conflict.

In that regard, the USCCB’s statement was a small step forward. The bishops did not accuse Obama of being anti-Catholic or of launching a campaign against religious believers. They did not threaten to stop providing health-insurance to employees or to close Catholic hospitals and universities. They even pledged to remain open to dialogue with the administration. Unfortunately, the statement repeated erroneous claims made by some bishops. For many women, contraception is not inexpensive. The mandate is not an “unprecedented defining of faith communities and their ministries.” Decisions are made all the time about what religious groups qualify for tax exemptions. And there have always been limits to religious freedom. Plural marriage is not possible for Mormons or Muslims, and Jehovah’s witnesses cannot deny blood transfusions to their children or insurance coverage for transfusions to their employees. Nor does the contraception mandate undermine the church’s ability to teach or catechize. Even if Catholic institutions comply with the mandate under duress, they remain free to condemn contraception. And because the decisions to accept contraception coverage and to use contraception are made by the employee, there will be no direct or formal material cooperation with evil for Catholic institutions.

The bishops’ March 14 statement insists that the conference is “strongly unified and intensely focused” in opposition to the mandate and in support of the USCCB’s confrontational strategy. It pointedly thanks “all who have stood firmly with us.” There was a remarkable degree of unity among Catholics in opposing the administration’s initial decision to limit exemptions to diocesan offices, parishes, and parish schools. Obama’s subsequent attempt to forge an accommodation was welcomed by the Catholic Health Association and a number of Catholic universities, but peremptorily rejected by the bishops. A more measured approach to the administration’s belated overture would have had a good chance of keeping the Catholic community united. That unity would have given the bishops the audience and support needed to make an effective case against more serious threats to religious liberty. Most prominent among those impending dangers is the legalization of assisted suicide and euthanasia, and anti-discrimination suits brought by same-sex couples against religious institutions. Catholic hospitals and universities will face vigorous challenges in these areas. Unfortunately, the bishops and their transparently partisan conservative allies have so far done more to confuse than to clarify this complex issue.